Former Bush Solicitor General Quits Law Firm to Defend DOMA

A Bush-era solicitor general quit Atlanta-based King & Spalding to defend the Defense of Marriage Act after gay rights activists leaned on the law firm to back out of a contract drawn up with Republicans.

In a letter dated Monday, Paul Clement, former solicitor general under President George W. Bush, resigned from his firm in order to represent DOMA. He wrote to Robert Hays, chairman of King & Spalding LLP, expressing disapproval of the firm’s decision to end its contract with the Bipartisan Legal Advisory Group formed by House Speaker John Boehner (R-Ohio).

“I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do,” said Clement. “Defending unpopular clients is what lawyers do.”

Last week, House officials announced they had signed King & Spalding and prominent constitutional lawyer Clement to defend the constitutionality of the 1996 law defining marriage as a union between a man and woman for federal laws. He was hired after the House vowed to defend DOMA, following the Department of Justice’s announcement in February that it would no longer assert the constitutionality of 1996 law in court. Conservatives have criticized President Obama for skirting his duty to defend federal law.

The firm came under pressure from gay rights activists who decried the firm’s decision to back a law some view as unfair discrimination. Gay publications and blogs identified the firm as a moderate group which extends benefits to the same-sex partners of its employees and has a non-discrimination clause that includes discrimination based on sexual preference. Gay rights group Human Rights Campaign announced it would launch a campaign against King & Spalding's defense of the gay marriage ban DOMA on Tuesday.

On Monday morning, King & Spalding chairman Hays announced that the firm was backing out of the contract with the House leadership. The contract would have offered the firm up to $500,000 in compensation for the case.

“The bottom line is that K&S was under no obligation to take this case. They consciously chose to defend a law that discriminates against LGBT Americans, including K&S's LGBT employees and clients,” said HRC president Joe Solmonese.

Clement stated in his letter that one’s beliefs on the merits of DOMA is irrelevant. He asserted that the firm signed a contract agreeing to take on the case and it should uphold that agreement, no matter how unpopular.

“Much has been said about being on the wrong side of history,” he wrote. “When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

Boehner’s office blasted the firm’s decision.

“The Speaker is disappointed in the firm’s decision and its careless disregard for its responsibilities to the House in this constitutional matter,” spokesman Brendan Buck said.

He also praised Clement’s actions. “Mr. Clement has demonstrated legal integrity, and we are grateful for his decision to continue representing the House.”

Clement stated in the letter that he would continue with his plans to defend DOMA from law firm Bancroft PLLC.

Bancroft PLLC is a Washington, D.C.-based law firm founded by Viet D. Dinh, a former assistant attorney general and law professor at Georgetown University Law Center. Dinh is one of Clement’s former colleagues in the Bush Justice Department.

Correction: Tuesday, April 26, 2011:

An article on Tuesday, April 26, 2011, about Paul Clement's decision to quit King & Spalding after the law firm backed out of a contract with House Republicans incorrectly attributed a quote about K&S being under no obligation to take the Defense of Marriage Act case to Robert Hays, chairman of King & Spalding LLP. Human Rights Campaign president Joe Solmonese made the statement, not Hays.